International & G. N. R. R. v. Smith

Decision Date19 October 1886
Citation1 S.W. 565
CourtTexas Supreme Court
PartiesINTERNATIONAL & G. N. R. R. v. SMITH and Wife.

conductor, who was an employe of defendant company, if she was on the right train, and he told her to keep her seat; that she did so, and, after leaving Longview Junction, the conductor came round for tickets, and, after looking at the tickets of herself and her sister, told them they were on the wrong train; used insulting language to them; had the train slowed up, and put them off at an abandoned saw-mill site, not a regular station; that it was night, and dark; that only a few people, principally negroes, lived there, and, being afraid to stay there, she and her sister, with the children, walked back to Longview Junction, four or five miles, through a swamp, and over a railroad bridge, and she suffered greatly from fatigue and fright. Defendant's answer set up, among other things, that plaintiff was offered the opportunity to go to Troupe, and from there to Mineola, by paying passage only from Troupe to Mineola, where she would again be on the Texas & Pacific Railway, or to take the return train on the defendant's road, from the point where she got off, back to Longview Junction, without paying anything. There was a demurrer to the petition, which was overruled, and the jury returned a verdict for plaintiff for $8,000. Defendant appealed from the judgment on the verdict.

Taylor & Morrison and F. B. Sexton, for appellant. T. M. Campbell, John M. Duncan, and W. B. Wynne, for appellees.

WILLIE, C. J.

The pleadings, evidence, and charge of the court in this suit are substantially the same as in the case of International & G. N. R. R. v. Gilbert, 64 Tex. 536, both cases having arisen out of the same occurrence. As the rulings of the court below upon the appellant's demurrers, as also the charge of the court in this case, are in accordance with that decision, with which we are content, they furnish no ground for reversing the present judgment.

The remarks of the special judge who tried this case, complained of in the tenth assignment of error, were directed to the demurrers, and not to the evidence to be introduced, upon which latter alone the judgment of the jury could be exercised. We are at a loss to know how a remark to the effect that all the questions raised by the demurrer had been settled by the supreme court in a companion case, where the pleadings were substantially the same as those in the case on trial, could influence the verdict of the jury. With the pleadings the jury had nothing to do, except to apply the evidence to them, and ascertain whether the case made by them had been proved by evidence. In doing this they could not be affected in the least by any remark to the effect that the pleadings were in themselves sufficient.

As to the eleventh assignment of errror, it is enough to say that, if the appellant's counsel wished to avail themselves of an objection to the language of opposite counsel in addressing the jury, their objections should have been presented in a motion for a new trial. International & G. N. R. R. v. Irvine, 64 Tex. 535. This was not done. The assignment is not, therefore, before us for consideration.

The charge of the court, as we have stated, was sanctioned by us in the Gilbert Case. If the appellant thought that the charge did not set forth with sufficient fullness the conditions under which the verdict should have been for the defendants, or if it did not enter sufficiently into the particulars which distinguish remote from proximate causes, special charges should have been asked upon these matters. This was not done, and the charge, being the law so far as it went, furnishes no reason for reversing the judgment.

The court properly refused the special charges that were asked. There was no proof showing that Mrs. Smith remained on the car at Longview for the purpose of getting passage without paying for it. According to her evidence, she thought she was entitled to ride on the car under the ticket she held. There is nothing in the defendant's evidence showing that she knew to the contrary before reaching Fort's Mill, the place where she left the train. The conductor of the train had no recollection of the circumstance at all, and no witness for the defense saw the plaintiff till she arrived at Fort's Mill. That this place was uncomfortable, unsuited for the accommodation of the plaintiff, and calculated to arouse her fears for the safety...

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5 cases
  • Roberts v. Smith
    • United States
    • Arizona Supreme Court
    • April 16, 1898
  • Gulf, C. & S. F. Ry. Co. v. Coopwood
    • United States
    • Texas Court of Appeals
    • June 9, 1906
    ...be held liable in damages for the mother's own mental anguish emanating therefrom. Railway Co. v. Gilbert, 64 Tex. 536; Railway v. Smith (Tex. Sup.) 1 S. W. 565. The principle of such liability rests upon the fact that the wrong done the child under such circumstances, is a wrong inflicted ......
  • Corrister v. Kansas City, St. J. & C. B. R. Co.
    • United States
    • Kansas Court of Appeals
    • April 25, 1887
    ...sustained by plaintiff, as the direct and natural result of being ejected from the train. Yonton v. Railroad, 21 N.W. 516; Railroad v. Smith, 1 S.W. 565; Railroad v. Gilbert, 64 Tex. 536; Gallena Railroad, 13 F. 116. II. The second proposition is, that it was error for the court to permit t......
  • Gulf, C. & S. F. Ry. Co. v. Green
    • United States
    • Texas Court of Appeals
    • November 1, 1911
    ...& P. R. R. Co. v. McDonald, 2 Willson Civ. Cas Ct. App. § 164; I. & G. N. R. R. Co. v. Gilbert, 64 Tex. 536; International & G. N. R. Co. v. Smith (Sup.) 1 S. W. 565 (Oct. 19, 1886); Malone v. Pittsburg & L. F. R. R. 152 Pa. 393, 25 Atl. 638; Hall v. S. C. R. F. Co., 28 S. C. 261, 5 S. E. 6......
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